The Public Square
No one should be surprised that decisions of great constitutional moment are sometimes occasioned by cases that seem trivial or exotic. Those who are threatened by the majority sentiment of the moment appeal to the Constitution, although not always successfully. There was, for instance, the 1879 Supreme Court ruling in Reynolds that outlawed polygamy among Mormons. For another instance, Employment Division v. Smith came down this April. There is mounting controversy over that decision. A truly remarkable coalition, representing the ideological spectrum from Left to Right, urgently petitioned the Court to reconsider Smith. The Court had not formally reconsidered a case for thirty years, and it turned down this petition as well. So Smith stands, and given the makeup of the Court majority in this case, it seems quite possible that constitutional doctrine has been dramatically changed for years to come.
The case, everyone agrees, was both trivial and exotic. That is, it did not involve a problem that seemed to be of great national moment. Two men in Oregon, both Native Americans, were fired from their state jobs and denied unemployment benefits because they ingested peyote as part of a sacramental rite in the Native American Church. Peyote, which is a mild hallucinogen made from cactus, is outlawed in Oregon. The men claimed that their constitutional right to the “free exercise” of religion had been violated. In Smith, the Supreme Court ruled against them.
That the Court ruled against them is not the reason for the controversy over this case. The dissenters (Blackmun, Brennan, Marshall) do make a plausible case that the judgment should have gone the other way. They suggest that the majority was panicked into writing bad law by the current sense of urgency over the drug crisis. They point out that twenty-three states, plus the federal government itself. exempt the religious use of peyote, that there is little demand for peyote, that it is not part of the illegal drug market, and that there is no evidence of ill effects on its users. In sum, they argue that there is no “compelling state interest” that justifies Oregon’s overriding the religious practice of the plaintiffs. It is the last point that brings us to the reason for the storm over Smith.
For a very long time, the Court has held that religious free exercise is a “preferred” constitutional right. In that sense it is like other rights in the First Amendment, such as free speech, press, and assembly. The established doctrine has been that, when it comes to these preferred rights, the state must prove that it has a compelling or overriding governmental interest in curtailing or denying such guaranteed freedoms. It is well understood that no right is absolute. When, for instance, speech becomes sufficiently incendiary or an assembly becomes an unmanageable mob, the common good may require the overriding of speech and assembly rights, constitutionally preferred though they be. Similarly, a claim that certain conduct is required by religious conviction must be tested against the necessities of the common good.
Nullification of the Religion Clause?
The question before the Court, then, was whether there was sufficiently compelling state interest for Oregon to outlaw the religious use of peyote. That was the question addressed by both sides in the oral argument before the Court. In its April 17 decision, however, the Court revealed that it had changed the rules of the game, thereby making the oral argument irrelevant. The question of compelling state interest. Justice Antonin Scalia wrote for the majority, is now eliminated. From here on, the Court will not entertain free exercise claims that seek exemptions to laws of “general applicability.” In effect, the free exercise guarantee in the Religion Clause of the First Amendment has been declared null and void. Put differently, the Religion Clause has been declared redundant. To be sure, it might still have meaning were a legislature to pass a law that established a specific religion and sought to impose its tenets on unwilling citizens. And it would have meaning were there a law that singled out one religion and prohibited its free exercise. But Scalia readily admits that such cases have never come before the Court, and it is unlikely that they ever will.
In view of the practical redundancy of the Religion Clause, therefore, it is to be considered out of play in the Court’s future deliberations. The Religion Clause can be, as it were, folded into other rights guaranteed in the First Amendment. The supposition is that the interests of religion can be adequately protected by, for instance, free speech and assembly. The switch in Smith
took almost everyone by surprise, leaving some breathless, some outraged, and most puzzled. Sweeping, revolutionary, jurisprudentially wanton, recklessly adventurous”these are among the terms used by some of the most distinguished constitutional scholars in the country, including many admirers of Scalia and of the Court’s new “conservative majority.”
The Court Majority of the Future
is of added importance because it does indeed represent what would seem to be the majority of the future (Scalia, Kennedy, Rehnquist, Stevens, White). Justice Sandra Day O’Connor joined in the majority’s conclusion but vigorously dissented from the reasoning in Scalia’s majority opinion. In past decisions, O’Connor has shown that it does not take very much government interest for her to deem that interest “compelling” in overriding free exercise claims. She was quite prepared to uphold the Oregon law. But in her dissent from Scalia’s opinion she convincingly, indeed devastatingly, demonstrates how radically he departs from established doctrine. Scalia’s account of the Court’s relevant precedents is so skewed that one leading jurist who is a longtime admirer of Scalia says, “I am sorry, but it is intellectually dishonest.”
We cannot search Justice Scalia’s conscience. Nor can we know why four other justices went along with his argument. Those who are not enthralled by the “majesty” of the Supreme Court might speculate that the four justices wanted to reach a conclusion that supported Oregon, and didn’t pay too much attention to the reasoning by which Scalia took them there. That speculation seems less plausible, however, in view of the fact that they could have joined O’Connor in the conclusion while rejecting Scalia’s reasoning. Admittedly, that would have produced the odd result, very embarrassing to Scalia, of five justices agreeing with the majority judgment while disowning the majority opinion in support of that judgment. For the time being, however, until the situation is clarified by future decisions, it is prudent to assume that a majority of the Court does concur in the argument advanced by Scalia in Smith.
becomes established doctrine, almost all the textbooks on religion and the First Amendment will have to be rewritten. Maybe that is not a bad thing. After all, almost all students of the subject agree that the Court has over the years made an awful mishmash of the Religion Clause, erratically pitting “no establishment” against “free exercise” in the most confusing ways. Perhaps, as Scalia’s argument would allow, the Court should get out of the religion question altogether. Perhaps the Founders made a mistake in not seeing how mischievous a thoroughly unnecessary Religion Clause would turn out to be. While Scalia undoubtedly butchers the Court’s precedents, perhaps that too is not a bad thing. Stare decisis
can become a false god that inhibits the “creative interpretation” of “the living Constitution,” as activist judges are wont to say. Except that Scalia and those joining his opinion are generally thought to be conservative critics of judicial activism.
Precedents aside, we may ask what are the policy implications of Smith.
How much real difference will it make? That depends on how rigorous the Court is in following through on the argument offered by Scalia. One possible result might be welcomed by many, including many conservatives. If the Court really intends to void the Religion Clause, that would apply to “no establishment” as well as to “free exercise.” In other words, if free exercise claims are to be lightly dismissed, establishment claims would logically come in for the same treatment. Thus, there would seem to be no problem with government aid to religious education and other activities. So long as a public purpose is served, and laws of general applicability observed, the fact that church schools or yeshivas advance religion is a matter of judicial indifference. Thus also, perennial disputes about religious symbols in public spaces, and even the continuing battle over prayer in public schools, would be obviated. These matters, according to the Scalia doctrine, would be entirely up to the people’s will as expressed through legislatures. Smith
would seem to accept, for policy purposes, the “religious neutrality” argument that has long been pressed by Philip Kurland of the University of Chicago. According to that argument, if a practice is otherwise constitutional, it does not matter one way or the other whether it involves religion. Those who find that argument attractive may be inclined to look with favor upon Smith.
On June 4, the Court decided another religion case (Board of Education v. Mergens),
and it reveals that at least some justices are indeed prepared to extend the logic of Smith
to the no establishment provision. In Mergens
the Court ruled, eight-to-one but with a flurry of separate opinions, that the Equal Access Act requiring public high schools to allow off-hours religious clubs is constitutional. Of special interest is the opinion written by Kennedy and joined by Scalia. According to them, no establishment means two things. It means that government cannot “give direct benefits to religion in such a degree that it in fact establishes a state religion or religious faith, or tends to do so.” Second, no establishment means “that the government cannot coerce any student to participate in a religious activity.” These two justices go on to criticize their colleagues who worry about whether a practice “endorses” religion. “But endorsement cannot be the test,” writes Kennedy. “The word endorsement has insufficient content to be dispositive.” The application of the endorsement test “may result in neutrality in name but hostility in fact when the question is the government’s proper relation to those who express some religious preference.” As we noted, there is reason to welcome this move away from an obsession with no establishment that too often results in rulings that infringe free exercise. The view of no establishment set forth by Kennedy and Scalia in Mergens
might resolve some of the most hotly contested issues in church-state relations. Their Mergens
argument on no establishment is the flip side of the Smith
argument on free exercise.
There are, however, other and deeply troubling aspects of the argument in Smith.
Religion, according to Scalia’s reading of the law, is limited to belief and profession. It does not include religious conduct. Since a law cannot force anyone to believe what he does not want to believe, it seems that there can, in principle, be no law that violates “no establishment.” Since professing any belief is protected under free speech, there is no need for “free exercise.” This is a truly radical rendering of constitutional history, but it seems to be what Smith
proposes. The four justices who dissent prove beyond reasonable doubt that, in fact, “free exercise” has included conduct. All one has to do is look at the record of free exercise cases that have come before the Court. Having more than one wife, distributing religious literature without a license, wearing a yarmulke in the military, demanding kosher food in prison, refusing to send children to public school” all have to do with conduct. In all these instances, people came into conflict with laws not because of what they believed or said, but because of what they did
in the name of the free exercise of religion.
Among many students of the Religion Clause, the Yoder
decision of 1972 exemplifies the best in “free exercise” jurisprudence. Yoder
decided that there was not sufficiently compelling governmental interest for the State of Wisconsin to force Old Order Amish parents to keep their children in school until age sixteen. Somewhat surprisingly, Scalia argues that Smith
does not overturn or undermine Yoder. Yoder,
he says, was not really a free exercise decision, but was a “hybrid” case involving other considerations, such as parental rights. The peculiar thing here is that parental rights are not mentioned in the text of the Constitution, and therefore rely entirely on earlier Court decisions. The dissenters in Smith,
and some scholars who otherwise agree with Scalia’s reasoning, find his interpretation of Yoder
entirely implausible. William Bentley Ball, who argued Yoder
before the Court, emphatically states that Scalia’s interpretation of the case is “nonsense.” The case was, he and others point out, clearly argued on the basis of free exercise, and it was on that basis that the Court upheld the religious rights of the Amish parents. If the reasoning advanced by Scalia in Smith
had been in force then, Yoder
would certainly have gone the other way.
Potential for Majoritarian Tyranny
If the logic of Smith
becomes established doctrine, religious rights have been stripped of their constitutional status and are left naked in the face of state power. Laws of “general applicability” regarding discrimination, for instance, will surely invite law suits against religious groups that refuse to ordain women or to employ active homosexuals and, for that matter, atheists in leadership positions. Similarly, laws controlling education could force religious schools to become clones of schools operated under government auspices. The implications for religiously sponsored health and social services are equally ominous. To such fears, Scalia has an answer: although religious exemptions are not grounded in the Constitution, legislatures are perfectly free to make whatever exemptions they wish, including exemptions for religion.
Scalia recognizes that this throws what were previously thought to be constitutionally protected rights to the will of the majority. Surely his statement on this question will go down as one of the more chilling, not to say callous, observations in the history of the Supreme Court: “It may fairly be said that leaving accommodation [of religion] to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.”
If a small or unpopular religious group cannot muster a majority in the legislature to permit its free exercise of religion, well, that is just too bad. That is the price we pay for democracy. One cannot help but be impressed that this reasoning is advanced by a Roman Catholic (joined by another Catholic, Justice Kennedy) who seems to have forgotten that not so long ago Catholicism was disadvantaged by the laws of a Protestant majority. More to the judicial point, Scalia’s argument stands in sharpest contrast to the previously secure understanding of First Amendment rights. That understanding was magisterially expressed by Justice Robert Jackson in Barnette
(1941), and is cited by the dissenters in Smith.
Jackson wrote: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
But Justice Scalia says he is concerned for the public peace. The United States, he writes, “cannot afford the luxury” of setting laws aside simply because they restrict religious practices. He rumbles about the dangers of “anarchy” and offers what Justice O’Connor calls a hypothetical “parade of horribles” in order to demonstrate the threat posed by religious claims to exemption from laws. The Founders, however, surely did not view the guarantees of the First Amendment as luxuries. And, as O’Connor and others point out, there is a long legal history dealing with religious claims on a case-by-case basis. Such claims have not posed the threat of anarchy in the past, and there is no reason why they should do so in the future. Scalia’s reasoning, to be sure, might get the Court out of a difficult area of constitutional law, but, if the Court’s purpose is to avoid difficult decisions, it should get out of the constitutional law business altogether.
Scalia’s Departure from Original Intent
Among the oddest aspects of Scalia’s opinion in Smith
is the total absence of historical argument regarding the text and its “original understanding.” Scalia limits himself to a discussion of precedents, almost all of them from the last fifty years. The oddness of this is that Scalia’s legal philosophy is generally thought to accord with that of Robert Bork, so effectively set out in his The Tempting of America.
In that philosophy, the definitive issue is what the writers and ratifiers of the Constitution intended, as best that can be determined from the text within the context of the time. Scalia does not even attempt to defend his reasoning on the basis of that history.
In his study of Madison and the constitutional process, The First Liberty,
William Lee Miller makes a convincing case that it is not simply an accident that religious freedom is the first freedom listed in the First Amendment. Far from folding the Religion Clause into the other clauses (speech, press, assembly, petition), as Scalia apparently wants to do, it is closer to the original understanding to view other freedoms as dependent upon religious freedom. That view receives powerful support from a recent article by Michael McConnell in the Harvard Law Review
on the free exercise of religion as understood by the Framers. McConnell, who is familiar to readers of this journal (“Taking Religious Freedom Seriously,” May 1990), is without doubt one of our foremost authorities on religion and the First Amendment. His contention, backed by impressive historical evidence, is that the Religion Clause is anything but redundant. It is, rather, at the heart of the Framers’ understanding of the polity that they were devising.
Madison is the key figure here, and he left a clear record of his view of religion’s place in the public order. He wrote in his famed Memorial and Remonstrance:
“Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society do it with a saving of his allegiance of the Universal Sovereign.” McConnell comments, “Religious freedom is a recognition not of the dignity of the individual (though it has that effect), but of the division of authority between earthly and spiritual sovereigns.”
Locke and Rousseau thought that religious differences and “sects” would threaten the public peace, and therefore religious claims must be subordinated to general laws which are, in turn, given moral authority by a vague “civil religion.” Not so with Madison. As we know from Federalist Papers
10 and 51, Madison understood that factions, including religious factions, would be a source of peace and stability, checking and balancing one another, and thus frustrating attempts to gain an oppressive monopoly. The reasoning of Smith
comes down solidly on the side of Locke and Rousseau, and against Madison. And if against Madison, then against the single surest guide we have to the original understanding of the First Amendment.
Wider Issues of Freedom
Although religious freedom is of inestimable value, it is not only religious freedom that is at stake in this dispute. McConnell again: “The Free Exercise Clause makes an important statement about the nature of government authority: it is limited. While the government is powerless and incompetent to determine what particular conception of the divine is authoritative, the Free Exercise Clause stands as a recognition that such authority may exist, and if it exists, has a rightful claim on the allegiance of believers who happen to be American citizens. The actual occasions for free exercise exemptions may be rare now, as in our early history; but the importance of the principle outstrips its practical consequences. If government admits that God (whoever that may be) is sovereign, then it admits, also, that its claim on the loyalty and obedience of the citizens is partial and instrumental. Even the mighty democratic will of the people is, in principle, subordinate to the commands of God, as heard and understood in the individual conscience. In such a nation, with such a commitment, totalitarian tyranny is a philosophical impossibility.”
In explicitly abandoning that commitment, the reasoning of Smith,
if it is allowed to stand, bids fair to become one of the more notorious turning points in our judicial history. One First Amendment scholar has opined that Antonin Scalia and Smith
on religious freedom may have earned a place in the Court’s history alongside Roger Taney and Dred Scott
on slavery. Critics of Smith
do not necessarily support a religious exemption for the sacramental use of peyote any more than they think that there should be an exemption for polygamy. They do insist that a state that acknowledges that it is limited by higher authority should be forced to demonstrate a compelling governmental interest before overriding what citizens believe to be their duty to that higher authority. In so insisting, they stand with Madison and the other Framers who well understood that religious freedom is the foundation, not the enemy, of the public peace in this constitutional order.
Another Kind of Conspiracy
We are generally opposed to conspiracy theories, because they are almost infinite in number and invite unlimited and unfalsifiable speculations that can never be brought to a conclusion. Conspiracy theories tend to be a tedious distraction from trying to understand the facts at hand. Nonetheless, we half-whimsically indulge what might be called a conspiracy hypothesis from time to time. For instance, we wonder why publications usually disposed to favor sundry feminisms have been featuring items that seem almost designed to discredit the feminist cause. Consider the Christian Century
and the New York Times.
In its “How My Mind Has Changed” series, the Century
runs an article by Carter Heyward of the Episcopal Divinity School in Massachusetts. It is a plaintive tale of one disaster after another” alcoholism, burnout, lesbian bondings and betrayals, and general unhappiness along the way of Ms. Heyward’s “faith journey” in the service of the God/ess. The reader is invited to conclude that the author’s miseries result from the oppression of a patriarchal society, and that is the kind of paranoid piety to which the editors of the Century
do occasional obeisance. The conspiracy hypothesis, however, is that they are on the sly giving Ms. Heyward and her sisters all the rope they need. It saves the editors the awkwardness of explicitly criticizing a once-fashionable movement that they now find embarrassing.
As for the Times,
there is the cover story in a recent issue of its Sunday magazine titled, “Who Says We Haven’t Made a Revolution? A Feminist Takes Stock.” Referring to Mary Wollstonecraft’s writing in the eighteenth century, Vivian Gornick writes that feminism has a way of coming and going, each time creating a small band of believers. “That’s it: a handful,” Ms. Gornick writes. “There weren’t many of us in 1790 and there aren’t that many of us in 1990.” But there have been achievements this time around: “We invented consciousness-raising (the personal is political), and we made sexism the natural analogue of racism and homophobia.” The big achievement in her view, an achievement now imperiled, is the right to abortion.
But even though many women are going back to having babies, and are becoming convinced that sexual plumbing does not say everything that needs to be said about gender differences, Ms. Gornick is not discouraged. Feminism, she says, is like psychoanalysis: a flash of insight is followed by endless struggles to work through one’s fear of what that insight implies. The women’s movement of the 70s was the flash, and now “we must believe that reiteration of the insight is the purge [of fear] itself; that after each repeat the patient is, in fact, not the same as before”and neither is the world. I, for one, do believe that.” In her faith Ms. Gornick is sustained by “intermittent erotic connection, and the company of intelligent women.” The feminist must go on, she says, “speaking hard truths into the rejecting air” and holding dear “the memory of visionary politics.” At the heart of her belief system is the doctrine that “each human being is essentially alone, and therefore
it was of the greatest importance that each person own as much of . . . herself as possible. To die alone, having had no power over one’s own life, was a terrible thing.” That, surely, is a belief of infinite sadness, for what then could be more terrible than the loss of control and power that comes, inevitably, with death? Were anyone looking for a tract to dissuade people from conversion to the feminist faith, we would recommend “Who Says We Haven’t Made a Revolution?”
The conspiracy hypothesis might also help explain why the Times
has returned Anna Quindlen to the position of regular columnist. The stereotype promulgated by male chauvinists is that men are cool, argumentative, and rational, while women are emotional, nurturing, usually silly when it comes to ideas, but awfully cute. Ms. Quindlen seems determined to reinforce the stereotype, and one cannot help but wonder whether the editors don’t know it. Almost any of her recent columns might serve to illustrate the point.
“Dirty Pictures,” for example, is a polemic against censorship. Drawing, however shakily, on her Catholic “background,” Ms. Quindlen appeals to Scripture. “ The truth shall make you free,’ wrote the Apostle John,” says she. In truth, the Evangelist quotes Jesus as saying, “If you continue in my word, you are truly my disciples, and you will know the truth, and the truth will make you free” (John 8:32, RSV). The truth that Ms. Quindlen has on her mind, however, is the truth of an exhibition that includes some certifiedly “artistic” photographs of a man peeing into another man’s mouth and similar homoerotic behavior. “Think of it as bad stuff you don’t like,” she writes, “but don’t think of it as bad stuff I can’t
like.” The libertarian Ms. Quindlen notes that she doesn’t like anchovies and modern architecture, and says “potahto” rather than “potato,” but she wouldn’t dream of imposing her tastes on others.
She is, in principle, opposed to the idea of “community standards.” “Community standards confuse me,” she charmingly admits. John Donne wrote that “No man is an island,” to which she responds, “Well, maybe he should be.” “Maybe America should try a bit of that rugged individualism stuff again. The board of standards resides within our own skulls.” This does not explain why Ms. Quindlen regularly displays the contents of her skull in a column on the most prestigious opinion page in the country. Presumably she intends to persuade people of her opinion that opinions don’t matter. (The observation that this may be self-contradictory would likely be dismissed as an instance of imposing “male logic” on a liberated woman, a dismissal sure to delight the aforementioned chauvinists.)
If persuasion does not work, maybe vituperation will do the job. Quindlen writes that those who object to government financing of homosexual pornography are censorious, parochial, and, in a word, “crazy.” “You don’t like Federal funding for this stuff? That’s OK; the Stealth bomber offends my esthetic sensibilities.” The Stealth bomber may or may not be a good idea, but it seems not to occur to the right-brained, nonlinear activity in Quindlen’s skull that the decision to acquire that weapon was ratified by an admittedly imperfect democratic polity. Or maybe it is the case that “Dirty Pictures” is really intended as an argument against democracy. She writes, “There is one message in censorship: You are not to be trusted.” But Ms. Quindlen makes no secret of the fact that she does not trust other people, especially the “crazy” people with whom she disagrees.
Despite her claim that she intends to be an island of rugged live-and-let-live individualism, in Ms. Quindlen’s view of America her fellow citizens are clearly in need of being radically reformed. “We have communities where violence against women is commonplace,” she writes, “but love between men is considered a crime against nature.” If the analogy with homoerotic exhibitions is to hold, it would seem that in some communities rape and sexual assault are not only approved but also government-funded. (But there we go again with our linear logic.) The Times’
champion of minding one’s business has very expansive views on what is wrong with others. She writes, for instance, of “the American mind” that it seems “to be getting tinier, and tinier, and tinier. That’s obscene.” Now we do not say that Quindlen’s argument, so to speak, is obscene, but it is silly. What it comes down to is that she wants moral judgments about the ordering of our common life to be censored, except for her
moral judgments about the ordering of our common life. One may be excused for wishing she would follow her own counsel and stay on her island, instead of incessantly preaching from the most prominent soap box in the public square.
To be fair, and against the conspiracy hypothesis, the Times
has arranged to make it clear that women have no monopoly on silliness. Tom Wicker and Anthony Lewis regularly appear on the same page as Anna Quindlen. Nonetheless, we cannot entirely shake the suspicion that in several editorial rooms, from Chicago to New York and perhaps elsewhere, a decision has been made (by men?) to showcase feminists who would bring maximum discredit upon the movement and offer aid and comfort to their male chauvinist opponents. We sincerely hope that is not the case, for it can only get in the way of hearing women who”unseduced by the silly season of this historical round of feminism”do not fit the stereotype reinforced by chauvinists and some feminists alike. The troublesome thing about conspiracy theories (or even conspiracy hypotheses), however, is that they keep being fed by just enough evidence to keep them alive. Of course we are being half whimsical. It is the whimsical half that will, predictably, draw letters of indignant protest. As one subscriber wrote, “You cannot joke about gender these days.” She did not indicate whether that was in the imperative or the indicative. Probably both.
While We’re at It
We should have noted in the August/September issue that my article “Wealth and Whimsy” was originally prepared for a conference of the Institute for the Study of Economic Culture at Boston University, It is being published this month as part of a collection put together by that organization in collaboration with the Institute for Contemporary Studies in San Francisco. The book is The Capitalist Spirit: Toward a Religious Ethic of Wealth Creation,
Peter L, Berger, ed., ICS press, $18
It is a cliché of long standing that the age of theological giants is past. That is usually said with reference to worthies such as Barth, Tillich, Niebuhr, and Rahner. In our judgment, however, there is a giant among us in the person of Wolfhart Pannenberg of Munich University. His work is the most ambitious, architectonic, and generally impressive theological project in the Christian world today. Eerdmans has just published his Metaphysics and the Idea of God, a small book with a large argument that helps prepare the way for his Systematic Theology, the first volume of which should appear in English within the year (also from Eerdmans). Metaphysics is by no means light reading, but it cannot be bypassed by theologians and philosophers who would rescue “God talk” from its religious ghetto and restore it to intellectual discourse that is authentically public.
Among those accused of being quislings during the Cold War, no religious institution is so often mentioned as the World Council of Churches, The WCC’s Central Committee has now responded to some of the charges raised. Interestingly, there are two statements, one on Romania, and one on Central and Eastern Europe. The reason would seem to be that Christians in Romania have been more outspoken about the WCC’s collaboration with Romanian churches that were in bed with the former Communist tyranny. Now the WCC bites the bullet and announces that it “regrets its mistaken judgment in failing to speak adequately” about oppression in Romania. That, presumably, is in the nature of a confession. As for Central and Eastern Europe more generally, well, the WCC is much more general. It repeats the standard position that its policy is to address human rights violations in Communist areas through “quiet intervention,” There is this acknowledgment: “However, the actions of the WCC . . . have not always been adequate or fully understood.” It seems that, at present, this is as far as the WCC can bring itself to go in recognizing that, for almost half a century, it routinely belittled, denied, or excused the most massive persecution of believers, Christian and other, in the history of humankind.
Leo Pfeffer”he of the Pfefferian Inversion by which the First Amendment’s “free exercise” of religion is subordinated to “no establishment””begins a recent essay on church-state relations this way: “According to Lewis Carroll’s report, When I use a word,’ said Humpty Dumpty, it means just what I choose it to mean”neither more nor less,’ Translated into constitutional law language in relation to the First Amendment, the Establishment Clause means just what the Supreme Court or a majority thereof at any particular time wants it to mean, neither more nor less.” That commendably candid statement helps explain why a growing number of jurists today are thinking again about whether “original understanding” might have something to do with the proper interpretation of the Constitution, The Humpty Dumpty story, however, does seem a particularly fitting context for Mr. Pfeffer’s view of constitutional law.
A Sue Robinson has written a novel of sorts. It is called The Amendment and is published by an obscure press. The story is about those awful anti-abortionists who push through a constitutional amendment banning abortion. As a result, women die at the hands of quacks operating in dark alleys, and America is turned into a police state. Herbert Mitgang, staff reviewer for the New York Times, writes, “There is indeed a plot and not simply a soapbox in this novel,” He acknowledges that it is badly written and the story is “farfetched,” In short, he thinks it is literary junk, “Still,” he concludes, “it deserves to find an audience, especially among sympathetic readers.” Sympathetic, that is, not to literature but to the party line on abortion. Exercises in agitprop so crass as The Amendment do not usually get a full-scale review and recommendation in “Books of the Times.” But the ideologically committed Mr. Mitgang is not one to let nitpicking about literary merit get in the way of doing his part for the cause.
Returning visitors from Eastern and Central Europe say they are struck by the recurrence of three expressions: “living in truth,” “naming the difference between good and evil,” and “civil society,” The importance of the first two is readily understandable when one remembers the countless truths that were sacrificed to the “Truth” of Marxist ideology. The importance of “civil society,” however, may escape many Americans, for we tend to take for granted what that phrase represents. It has to do with the fact that the state (including the party-state) is but one player among many in society. The “little platoons” (Burke) of family, religion, voluntary association, and economic cooperation belong not merely to “the private sector” but have roles and claims that are clearly civil and public in nature. Living in truth, naming the difference between good and evil, civil society”all three are ideas that need revival in this country as well.
Kent Hill of the Institute on Religion and Democracy wrote an important book called The Puzzle of the Soviet Church. Published in 1989, it does not include all the fast-breaking events touching on religion in the Soviet Union. Of course not. But its failure to include what happened last week is among the putative faults for which the book is flailed in Christianity and Crisis. The reviewer’s chief criticism, however, is that Hill is an “intrepid neoconservative” who refuses to recognize the “strong evidence that communism has the viability to reform itself.” Ah, so that’s what communism is doing. Strange that some witless people cannot see that the apparent collapse of communism in theory and practice only masks its continuing viability. It takes a subtle dialectic to grasp these things.
“There is nothing in the approach I have recommended that conflicts with Catholic faith, so far as I am aware.” That’s Garry Wills in the New York Review of Books. The qualifier is important, for Mr. Wills is either not very aware or he is disingenuous. Wills is writing about why Mario Cuomo’s “double standard” on abortion is not very persuasive. He argues, correctly we believe, that Cuomo’s “personally opposed but” position leaves him in a schizophrenic posture that divides personal conviction from public responsibility. Many others have pointed out that difficulty with the Cuomo position. The difference here is that Wills suggests that Cuomo should redefine the position of the Catholic Church. Cuomo’s present position is “a political dodge,” writes Wills. He goes on: “I know it is unrealistic to expect a Catholic politician to defy the bishops; but I am not considering the man’s career, just his argument.” The Governor, we expect, will not be inclined to subordinate career to argument, and will therefore probably decline Mr. Wills’ invitation to declare himself the authentic magisterium of the Catholic Church.
The DuPage Declaration: A Call to Biblical Fidelity is a spirited statement coming out of several years of consultation among some prominent, mainly Evangelical, Christian thinkers. A first draft was done by Donald Bloesch of Dubuque Theological Seminary, and that was the basis for discussions in DuPage, Illinois, in cooperation with the National Association of Evangelicals. Signers include Richard Lovelace and Betty Moore of the Presbyterian Church (USA), Waldo Werning, a Missouri Synod Lutheran, and Kevin Perrotta, a Roman Catholic renewal leader. In connection with current debates over homosexuality and other “alternatives,” the Declaration says this: “We affirm the biblical guidelines for human sexuality: chastity outside marriage, lifelong fidelity and holiness in marriage, and celibacy for the sake of the kingdom.” And this on abortion: “We affirm the sanctity of human life at every stage based on our creation in the image of God and our election by God for service in his kingdom. We deny, for example, that the personal choice of either parent takes precedence over the right of the unborn child to life in the service of God’s glory. We deplore the continuing traffic of abortion as the slaughter of innocents, which can only be an abomination in the sight of God.” Additional signatories are invited and copies of the statement are available from James Heidinger II, Good News, Post Office Box 150, Wilmore, KY 40390.
A more than usually observant reporter for the New York Times reflects on the difference between the two great abortion rallies in Washington, the prochoice in the spring of 1989 and the prolife this spring. She was struck by the difference in language use, in what we might call universes of discourse. The prochoice rally was dominated by language “about rights and laws, while these people [the prolifers] talk about rights and wrongs.” She goes on to suggest that a great gulf is fixed between these two groups. “The only common ground they share is the Washington Mall.” A perceptive reporter indeed. To bring the concern about rights and laws into conversation with the concern about rights and wrongs is perhaps the greatest challenge in American public life today. That goal, not so incidentally, might serve as a succinct statement of purpose for this journal.
Anti-feminist conspiracy: Christian Century, March 14, 1990; New York Times Magazine, April 15, 1990, and New York Times, April 22, 1990. On the WCC, Ecumenical Press Service, 6-10 April, 1990. Pfeffer on constitutional interpretation. An Unsettled Arena: Religion and the Bill of Rights, p. 69. Mitgang on The Amendment in New York Times, May 12, 1990. Criticism of Hill in Christianity and Crisis, May 28, 1990. Wills on Cuomo, New York Review of Books, June 28, 1990. Rights, wrongs, and laws. New York Times, May 1, 1990.